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Edwards v. Dwyer

United States District Court, E.D. Missouri, Southeastern Division

March 23, 2017

LAWRENCE MARTIN EDWARDS, Plaintiff,
v.
CHUCK DWYER, et al., Defendants.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This closed prisoner civil rights matter is before the Court on review of the Missouri Department of Corrections' (“MDOC”) Response to the Court's Order of January 26, 2017. The Court will not repeat the factual and procedural background of this matter, which was set forth in detail in the Order and is incorporated herein by this reference. The Order of January 26, 2017 directed the MDOC to “file a Response supported by an affidavit or declaration signed under penalty of perjury by an appropriate MDOC official, which shall provide information sufficient to answer the following questions:”

(1) Were there two different persons employed by the MDOC, one named Tamara Cobbs (or similar) who left the MDOC's employment in 2001, and one named Tamoshanter D. Cobb who worked at [Southeast Correctional Center] ¶ 2005;
(2) what address did the MDOC provide to the Court in camera and under seal in late June 2007 as the address of Tamara Cobbs (if possible, the MDOC shall submit a copy of the actual filing that was made in camera and under seal in June 2007 as an exhibit to the Response); and
(3) was the address the MDOC provided to the Court in late June 2007 the last known address of Tamara Cobbs, or Tamoshanter D. Cobb.

         Order of January 26, 2017 at 9 (Doc. 342).

         In response, the MDOC filed the Affidavit of Matthew Briesacher, MDOC's current Director of Human Resources. The Briesacher Affidavit states in pertinent part:

3. My search of Department records has not revealed that the Department has ever employed a person named Tamara Cobbs or any other person with a similar name.
4. The Department has had an employee named Tamoshanter D. Cobb who worked for the Department from 11/17/2003 until 5/16/2006.
5. The last known address for Tamoshanter D. Cobb in any record the Department has access to is [REDACTED]. This information was obtained from the Office of Administration.
6. I am without personal knowledge as to what address the Department provided to the Court under seal in June 2007, however, documentation provided to me by the Missouri Attorney General's Office indicates that the Department provided the address [REDACTED], to the Court under seal. (Ex. A).

Briesacher Aff. at 2-3 (Doc. 348-1).

         Exhibit A to the Briesacher Affidavit is a Notice of Filing Document Under Seal (Doc. 125), which bears an Electronic Case Filing header indicating it was filed in this case on June 29, 2007 as Document 125. The Notice of Filing Document Under Seal does not include the last known address for named defendant Tamara Cobbs, but states that the address will be filed separately in camera and under seal. Attached to Briesacher Affidavit Exhibit A is a document titled “Address Filed Under Seal, ” which does not include an Electronic Case Filing header. A review of the Court record, however, establishes that this document was filed under seal on March 12, 2012 as Document 335 by nonparty George Lombardi in response to the undersigned's Order of January 10, 2012 (Doc. 327), not in June 2007 in response to Judge Buckles' Order of June 26, 2007 that directed the MDOC to provide the Court with named defendant Tamara Cobbs' last known address.

         It is important to recognize that paragraph 6 of the Briesacher Affidavit refers to a document filed in 2012 to purportedly establish the address that was submitted to the Court in June 2007 for service of summons and complaint on named defendant Tamara Cobbs. For the reasons discussed below, paragraph 6 of the Briesacher Affidavit appears to be factually incorrect. Further, paragraph 3 of the Briesacher Affidavit is contrary to the MDOC's representation to the Court in the Nonparty's Response and Motion to Quash Plaintiff's Subpoena Directed to George Lombardi (Doc. 326) filed in November 2011, which stated in pertinent part that there was an MDOC employee named ...


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